Cherniwchan v. State, s. 5024
Citation | 594 P.2d 464 |
Decision Date | 03 May 1979 |
Docket Number | Nos. 5024,5025,s. 5024 |
Parties | James A. CHERNIWCHAN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). James W. HARRISON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
Court | United States State Supreme Court of Wyoming |
Steve D. Noecker, Rawlins, for appellants.
John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Leonard D. Munker, Senior Asst. Atty. Gen., Cheyenne, for appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
Defendants-appellants, James A. Cherniwchan and James W. Harrison, were charged with, tried for, and found guilty of violating § 6-8-305, W.S.1977, pertaining to escape from the Wyoming State Penitentiary.
Eights days after their escape, namely on November 1, 1977, the defendants were arrested and returned to the penitentiary; and ten days later, a complaint and warrant issued, charging them with the crime of escape. The warrant was returned eight days later, on November 18, 1977.
On February 15, 1978, 107 days after their arrest, the defendants were, for the first time, brought before the magistrate. At this juncture, the public defender's office was notified.
On April 11, 1978, 162 days after their arrest, a preliminary hearing was held and the defendants were bound over to district court. The information was filed on April 14, 1978, arraignment had on April 19, 1978, and trial was held on May 22, 1978, 203 days after arrest.
The defendants charge the following errors:
We will affirm the trial court's judgment entered upon the jury's verdict of guilty and its order refusing dismissal and vacation of the proceedings due to unnecessary delay.
Rule 5 of the Wyoming Rules of Criminal Procedure provides:
The questions for our decision are: (1) Was Rule 5 violated by an "unnecessary delay" between the arrest and the appearance before the magistrate? and (2) If the rule was violated, what is the effect of its violation?
Rule 5 was violated.
Rule 5(a) of the Wyoming Rules of Criminal Procedure requires an arrested person be taken "without unnecessary delay" before a court commissioner. The term "without unnecessary delay" is not subject to precise definition, nor does it call for mechanical obedience. Application of the limits of the term is dependent upon both the facts and circumstances of the particular case, viewed in light of the purpose of the rule. Richmond v. State, Wyo., 554 P.2d 1217, 1228 (1976); Raigosa v. State, Wyo., 562 P.2d 1009, 1015 (1977); and Sciberras v. United States, 10 Cir., 380 F.2d 732, 734 (1967).
The rule was violated in that the 107 days after arrest before the defendants were taken before a magistrate, constitutes not only an unreasonable delay but an unconscionably unreasonable delay by any and all standards. Both the district court and the county attorney conceded the fact of unreasonable delay at the oral arguments on the defendants' motion to dismiss.
What is the effect of a Rule 5 violation under the facts of this case?
Rule 5 is not unlike its counterpart in the Federal Rules of Criminal Procedure, the origin of which stems from the abuse described in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The purpose of the rule is to prevent officers from illegally obtaining statements during a defendant's initial confinement, but prior to appearance before a magistrate, 5 Am.Jur.2d, Arrest, § 75, p. 752 (1962), which is to say that its purpose is to prevent the abuses described in McNabb v. United States, supra, and Mallory v. United States, supra. 1 Judge Murrah, writing for the Tenth Circuit in Blood v. Hunter, 10 Cir., 150 F.2d 640, 641 (1945), stated:
It is admitted that in the case at Bar there was no evidence to be excluded, but defendants urge that because of the long delay, the lack of incriminating statements should be of no consequence, and the defendants' remedy, in these circumstances, should be dismissal. The relief accorded a defendant victim of unnecessary delay is the exclusion of evidence obtained during the delay. Mallory v. United States, supra, citing to McNabb, supra.
In 1 Federal Practice and Procedure, Wright, § 37, pp. 77-78, it is said:
In United States v. Kenner, 36 F.R.D. 391, 393 (1965), the court said:
(Citing to Mapp v. Ohio, 367 U.S. 643, 651-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).
We conclude, therefore, that even though the defendants' Rule 5 rights were violated, under the facts of these cases their only relief is the exclusion of evidence tainted by illegal detention and not dismissal.
We agree defendants have a federal and state constitutional right to a speedy trial. In Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the United States Supreme Court held that the Fourteenth Amendment to the United States Constitution made its federal constitutional Sixth Amendment guarantees obligatory on the states. In Klopfer, Chief Justice Warren, writing for the court, said:
386 U.S. at 223, 87 S.Ct. at 993, 18 L.Ed.2d at 8.
Justice Brennan, concurring in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), spoke of the evils at which the speedy-trial clause is directed, when he said:
". . . It is intended to spare an accused those penalties and disabilities incompatible with the presumption of innocence that may spring from delay in the criminal process. . . ." 398 U.S. at 41, 90 S.Ct. at 1570, 26 L.Ed.2d at 34.
In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the court, in interpreting Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), said that an affirmative showing of prejudice was not necessary to prove a denial of the constitutional right to a speedy trial and held:
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Despain v. State
...(1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Note, supra, 43 N.Y.U.L.Rev. 722. Cf. Cherniwchan v. State, 594 P.2d 464 (Wyo.1979). In these cases, pre-charging delay is tested by a due process, Fourteenth Amendment analysis; arrest initiates the Sixth A......
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...judge majority in special concurrence; Cook v. State, 631 P.2d 5 (Wyo.1981); Robinson v. State, 627 P.2d 168 (Wyo.1981); Cherniwchan v. State, 594 P.2d 464 (Wyo.1979). Cf. Harvey, 774 P.2d at 104, Urbigkit, J., specially concurring.25 The authority for current United States constitutional e......
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...other reason. Delays attributable to a defendant may disentitle him to speedy trial safeguards. Harvey, 774 P.2d at 94; Cherniwchan v. State, 594 P.2d 464, 468 (Wyo.1979). The State argues that appellant agreed to the first "seven" months of delay from the time of the original complaint unt......